The facts concern the family name of a German child of German parents. According to German law, a person’s name falls to be decided by the law of the State of his or her nationality. Also, German law does not allow a child to have a double-barrelled name made of a his father's and mother's surnames. But, the child was born in Denmark and was registered there with just the double-barrelled name not allowed in Germany, but allowed in Denmark. The Registrar’s Office (Standesamt) in Germany refused to recognize the double-barrelled surname as it had been given in a manner contrary to German private international law (according to the law of the nationality of the child). To cut a long story short, the Registrar's office referred the matter to the Amtsgericht (Local Court). But then the Local Court wondered whether EC law requires that the name that is valid under Danish law must be recognized by German law.
The Court of Justice declined to answer the question referred on the ground that the Local Court was exercising an administrative not judicial function without at the same time being called on to decide a dispute.
The Court recalled that to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, for instance Case C-182/00 Lutz and Others at paragraph 12). Whilst Article 234 EC does not make a reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers a question for a preliminary ruling (see Case C-18/93 Corsica Ferries at paragraph 12), a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see for instance Case C-165/03 Matthias Längst at paragraph 25). When the national court exercises administrative authority, without at the same time being called on to decide a dispute, even if it satisfies the other conditions, cannot be regarded as exercising a judicial function (see, for instance Case C-182/00 Lutz and Others at paragraph 14).
In this case, the Court found that there was no dispute between the parents or between anyone else about registering the double-barrelled name: There had been a dispute but it was over and not the subject of the procedure before the Amtsgericht.
The Court does not refer to its judgment in C-53/03 Syfait which dealt with the issue whether the Greek antitrust authority was a court or not for the purposes of Article 234 EC.
The odd thing is that no-one seems to have considered what was the Danish private international law on the matter.